Publishers and Library Groups Spar in Appeal to Ruling on Electronic Course Reserves

By Jennifer Howard

Fair use and electronic course reserves are back in court. A keenly watched copyright case that pitted three academic publishers against Georgia State University has entered the appeals phase, with a flurry of filings and motions this week and more expected soon.

One surprise motion came from the U.S. Department of Justice, which requested more time to consider filing an amicus brief either in support of the publishers or in support of neither party. The possibility that the government might weigh in triggered speculation and anxiety among some observers, including academic librarians worried that the Justice Department could sabotage educational fair use if it sides with the publishers against the university. A spokesman for the department told The Chronicle it had no comment at this time.

The case in question is Cambridge U. Press et al. v. Mark P. Becker et al. In 2008, Cambridge, Oxford University Press, and SAGE Publishers sued Georgia State, asserting it had committed widespread copyright violations when it allowed some of their content to be used, unlicensed, in e-reserves. The Association of American Publishers and the Copyright Clearance Center, which specializes in licensing content to universities, bankrolled the legal action.

Last May the presiding judge, Orinda Evans of the U.S. District Court in Atlanta, handed the university a significant victory in the case. Judge Evans ruled that Georgia State had committed copyright violations in only five of the 99 instances the publishers put forward, and she ordered the plaintiffs to pay the defendants' legal costs. Fair-use advocates mostly celebrated the judge's verdict.

The publishers decided to appeal. The case will be heard by the U.S. Court of Appeals for the 11th Circuit, which is no stranger to high-profile copyright cases. In 2001 it heard a dispute between the estate of Margaret Mitchell and the publisher of The Wind Done Gone, a novel by Alice Randall that parodied Mitchell's Gone With the Wind. The court vacated an injunction against the publisher, and the estate dropped the lawsuit in exchange for certain concessions.

In their brief, filed on Monday, the publishers argue that, if the lower court's ruling stands, it will have implications that go far beyond Georgia State's practices. The publishers play up the idea that e-reserves amount to course packs or anthologies of reading material. Judge Evans's decision "invites universities nationwide to accelerate the migration of course-pack creation from paper to electronic format" and to sidestep legal permission to use copyrighted content, the brief states.

That pattern of behavior could undercut "the efficient licensing markets that have evolved to serve the needs of academic users." That, in turn, "would threaten the ongoing ability of academic publishers to continue to create works of scholarship," the publishers argue.

The Association of American University Presses plans to file an amicus brief on behalf of publishers on Monday, February 4. The Chronicle saw an advance copy of the brief. In it, the association argues that the outcome of the case will directly affect its members, who publish much of the content professors use in their courses.

The brief echoes Cambridge, Oxford, and SAGE's concerns that the spread of e-reserves means more uncompensated use of copyrighted works and leads to smaller permissions revenues. The association notes the importance of the fair-use doctrine in encouraging research and scholarship. What's objectionable, it says, is using large amounts of in-copyright material without paying for it.

Not an 'Existential Threat'

But Brandon Butler, director of public-policy initiatives for the Association of Research Libraries, took issue with the argument that e-reserves put publishers at great risk.

"I'm baffled that the publishers continue to claim that course reserves pose some kind of existential threat to their business," he told The Chronicle via e-mail. "It was established at trial that GSU's practices are in the mainstream, so libraries are basically already doing what the publishers claim will put them out of business, and yet Oxford University Press reported $1-billion in sales last year, $180-million in profits. Is that what a publisher on the verge of collapse looks like?"

Mr. Butler's group belongs to the Library Copyright Alliance, along with the American Library Association and the Association of College and Research Libraries. The alliance has supported Georgia State throughout and expects to file an amicus brief on its behalf no later than March.

Georgia State University has not yet filed its brief in the appeal, and a representative of the university said it had no comment now. Filings on the publishers' side were originally due on February 4. The Justice Department's request asks the court to extend that deadline.

Librarians who track copyright and intellectual-property issues are paying close attention to the appeal. The possibility that the government might side with the publishers has them concerned.

"I think a lot of faculty and researchers will be shocked to hear that the U.S. government might actually weigh in on the side of publishers instead of its public universities," said Katie Fortney, copyright-management officer at the University of California's California Digital Library. "The district court's opinion was thorough and well reasoned, and I would hope and expect that the 11th Circuit will also decide in favor of fair use, whatever the DOJ decides to file. They really ought to be filing an amicus brief in support of Georgia State."

Ms. Fortney has heard a lot of course-pack jokes—a nod to the publishers' brief—from fellow copyright librarians in the last day or so. The humor belies what's at stake.

Librarians take copyright seriously and "were really heartened by the Georgia State case, just to see a court case come out that supports the kind of educational fair use that we've all been doing," she said.

"We're public universities, many of us, educating the nation's youth," Ms. Fortney added. "We feel like we're fulfilling our mission. I think people would just be crushed and confused to see the administration come out and say we are not."